Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sellick v. Agency-Castle Point

July 16, 2010


The opinion of the court was delivered by: Denise Cote, District Judge


Plaintiff Emilia Rose Sellick ("plaintiff"), an employee of the U.S. Department of Veterans Affairs (the "VA"), brings this lawsuit for employment discrimination under Title VII and the ADEA against Agency-Castle Point, the Veterans Administration Medical Center, David Gitelson, and Eric K. Shinseki*fn1 (collectively, "defendants"). The plaintiff alleges that she was not hired for a social worker position in July 2006 because of her religion, age, gender, or national origin. The plaintiff also asserts that, in 2009, the VA retaliated against her by refusing to hire her for several other job openings. On March 19, 2010, the defendants moved for summary judgment on all claims. For the following reasons, that motion is granted in its entirety.


The following facts are undisputed or are presented in the light most favorable to plaintiff.*fn2 The plaintiff is currently employed as an Imaging Program Assistant at the Castle Point Campus ("Castle Point") of the VA's Hudson Valley Healthcare System (the "Hudson Valley VA"). In her role as Imaging Program Assistant, the plaintiff is responsible for greeting patients and visitors, registering and scheduling patients for X-ray exams, relaying communications between doctors, and answering patients' questions. The plaintiff has held this position, which is rated as GS-6 on the federal government pay scale, for the past ten years.

I. Plaintiff's Relationship with Dr. Gitelson

The plaintiff became a VA employee in November 1991. From 1991 to about 1999, the plaintiff held the position of Secretary of Social Work at Castle Point, which was then an independent VA hospital. The plaintiff's duties in this position included typing social workers' handwritten reports, answering the telephone, and performing other administrative tasks.

Throughout the early 1990s, Dr. David Gitelson ("Gitelson") was the Chief of Social Work at Montrose Hospital ("Montrose"), a different VA hospital approximately twenty-five miles from Castle Point. The plaintiff and Gitelson became acquainted sometime in the early-to-mid 1990s, but they did not work together directly at that time. In or about 1996, however, Castle Point merged with Montrose to form the Hudson Valley VA. Upon consolidation, Gitelson assumed the title of Chief of Social Work for the Hudson Valley VA and also became the plaintiff's supervisor.*fn3

Gitelson served as the plaintiff's supervisor from about 1996 until about 1999. According to the plaintiff, her working relationship with Gitelson at first was "cordial." After some time, however, the relationship became "uncomfortable." At her deposition, the plaintiff testified that Dr. Gitelson began treating the plaintiff less respectfully than he did other employees. Although Gitelson generally gave the plaintiff positive ratings on her performance appraisals, Gitelson once criticized the plaintiff in a performance review for failing to change a printer cartridge promptly.

The plaintiff's working relationship with Gitelson during the late 1990s was punctuated by several instances of interpersonal tension. In or about 1998, the plaintiff began attending evening classes at Adelphi University ("Adelphi") with the goal of obtaining a master's degree in social work ("MSW"). In or about 1999, the plaintiff entered a phase of her MSW program that required her to occasionally miss work. According to the plaintiff, when she first asked Gitelson for permission to use her accrued annual leave time ("AL time") to attend classes at Adelphi each Tuesday morning, Gitelson firmly refused to allow it. Gitelson eventually acceded to the plaintiff's request, however, after the plaintiff learned that Gitelson was using his own AL time to teach classes at Adelphi every Friday morning.*fn4

Later, in or about 1999, the plaintiff took a class at Adelphi entitled "Advanced Group Work" that was taught by Gitelson himself. Gitelson gave the plaintiff a "D" on the first paper that she submitted for the class.*fn5 Unhappy with this grade, the plaintiff scheduled a meeting with Gitelson to discuss the paper. According to the plaintiff, during that meeting, Gitelson criticized plaintiff's lack of insight, used negative put-downs, and told her she would not make a good social worker.*fn6 As her final grade in the class, Gitelson gave the plaintiff a "C-", the lowest grade she received for any class at Adelphi. Based on this experience, the plaintiff became convinced that Gitelson was trying to cause her to fail the MSW program.

One other incident occurred during the late 1990s which the plaintiff considers pertinent to this lawsuit. Every holiday season, the plaintiff wears a "Christmas bell" while at work; the bell jingles when the plaintiff moves or when it is otherwise disturbed. On one occasion, in or about December 1998, Gitelson called the plaintiff into his office and abruptly instructed her to take off her bell. According to the plaintiff, when she asked Gitelson why she should remove her bell, he responded, "[b]ecause it annoys me."*fn7

II. The Plaintiff's Job Transfers

In 1999, the Hudson Valley VA was restructured, and the social work service to which the plaintiff had previously been assigned was eliminated. The plaintiff was re-assigned to work as a secretary on the "hospital care line." The general supervisor of the hospital care line was Dr. Malati Kollali ("Kollali"). The plaintiff testified that while working for Kollali, she was subjected to a hostile work environment, such as receiving antagonistic e-mails from her co-workers and unduly harsh criticism from her supervisors. The plaintiff also claims that, while she was working on the hospital care line, Gitelson "manipulated" Kollali and others "to make [plaintiff] look like [she] was an incompetent worker." After the plaintiff complained about her working conditions, she was reassigned to work in human resources for several months. Thereafter, the plaintiff was permanently reassigned to her current position in the imaging department.

III. Application for a Social Worker Position

In May 2003, the plaintiff graduated from Adelphi with an MSW degree. In January 2004, the plaintiff obtained part-time employment as a substance abuse counselor and social worker at St. Francis Hospital, although she also continued to work at Castle Point.

In or about June 2006, the plaintiff applied for a job opening as a social worker in the substance abuse program at the Montrose Campus of the Hudson Valley VA.*fn8 At the time plaintiff applied, three social worker positions were available, each at GS-9 or higher on the government pay scale. The selecting officials for the social worker positions were Gitelson and Betty Gilmore ("Gilmore"), then the Manager of Behavioral Health Rehabilitation Programs at the Hudson Valley VA.*fn9

As part of the selection process, Gitelson and Gilmore conducted interviews with each applicant, including the plaintiff.*fn10 Gitelson and Gilmore asked each candidate, including the plaintiff, the same set of questions. Following each interview, Gitelson and Gilmore separately rated each candidate on a scale of 0 to 10 in each of six evaluative categories. Both Gitelson and Gilmore awarded plaintiff only 1 point for each of the six categories, giving plaintiff a total score of 12 out of a possible 120 points. In contrast, the three candidates who were ultimately hired received scores of 67, 86, and 94.*fn11

Following these interviews, a select group of candidates, including the plaintiff, was invited to visit the in-patient program at which the three social workers would be based.*fn12

While visiting, each candidate did a secondary interview with two supervisors from the substance abuse program: Dr. Warren Goldfarb ("Goldfarb"), who was the Team Leader for Residential Substance Abuse, and Dr. Alan Wachtel ("Wachtel"), the Acting Team Leader for Outpatient Substance Abuse. Gilmore supplied Goldfarb and Wachtel with a list of questions to ask the candidates and a set of rating scales identical to those used by Gilmore and Gitelson in the prior interviews. In her secondary interview with Goldfarb and Wachtel, the plaintiff received a total score of 13 out of 120, while the three successful candidates received scores of 96, 100, and 104.*fn13 The plaintiff was then notified that she had not been selected.

IV. Procedural History

In August 2006, the plaintiff filed a complaint of employment discrimination with the VA's Equal Employment Office ("EEO") for failure to hire based on age, sex, and national origin (the "2006 EEO Charge"). Following extensive administrative proceedings in which the plaintiff was unsuccessful at pursuing her claims, the Equal Employment Opportunity Commission ("EEOC") denied reconsideration on June 16, 2009, and advised the plaintiff of her right to bring a civil action.

On July 17, 2009, the plaintiff timely filed a complaint with this court alleging claims under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Age Discrimination in Employment Act ("ADEA"). Following discovery, on March 19, 2010, the defendants moved for summary judgment on all claims and served plaintiff with a "Notice to Pro Se Litigant Who Opposes a Motion for Summary Judgment."*fn14 Plaintiff submitted a letter of opposition on April 9 (the "April 9 Opposition"), and on April 30, the defendants filed their reply.*fn15


Summary judgment may not be granted unless all of the submissions taken together "show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the court must view all facts "in the light most favorable" to the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008).

Once the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set out specific facts showing a genuine issue for trial," and cannot "rely merely on allegations or denials" contained in the pleadings. Fed. R. Civ. P. 56(e); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). "A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment," as "[m]ere conclusory allegations or denials cannot by themselves create a genuine issue of material fact where none would otherwise exist." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted). Only disputes over material facts -- "facts that might affect the outcome of the suit under the governing law" -- will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (stating that the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts").

In cases involving allegations of employment discrimination, the court must exercise "an extra measure of caution" in determining whether to grant summary judgment "because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence." Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (citation omitted); see also Holcomb, 521 F.3d at 137. Even in an employment discrimination case, however, "a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment." Holcomb, 521 F.3d at 137. The ultimate test for summary judgment in discrimination ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.